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Department of Ecology News Release - Sept. 11, 2000
00-179
OLYMPIA –A Thurston County judge has verified that county-established conservancy boards do have greater authority to modify existing water rights than environmental groups claimed, but he also ruled that the boards' scope of authority is less than the Department of Ecology believed.
The ruling by Superior Court Judge Daniel Berschauer involved a lawsuit brought by the Center for Environmental Law and Policy and Washington Environmental Council against Ecology.
A 1997 state law allows county governments to create boards to process applications to modify existing water rights. In 1999, Ecology adopted an administrative rule to define how to set up and operate the boards. The environmental organizations claimed in their lawsuit that Ecology's rule assumed conservancy boards had more authority than the law allows.
Ecology's rule assumed that conservancy boards could process the same kinds of water-right transfers that Ecology is authorized to process under state law. The judge upheld Ecology's rule in part, but also agreed with the environmental organizations' contention that the statutory language limits the type of decisions that conservancy boards may make.
The judge agreed with Ecology that conservancy boards may process applications that do not involve a transfer in the ownership of the water right. He also agreed that the boards may process applications to use the water in a new location, including any associated changes in the point where water is diverted or withdrawn. However, attorneys for Ecology said it is not clear from his ruling whether the boards may process applications involving a different point of withdrawal if the location where the water would be used remains the same. Ecology may seek further clarification from the judge on that issue.
In a clear narrowing of the boards' authority, the judge concluded that the boards may not process applications to modify the purpose of use of the water (e.g., agriculture to domestic). Ecology will consider whether to appeal that aspect of the decision.
"We are pleased with several aspects of the judge's ruling, and disappointed in others," said Keith Phillips, who manages Ecology's water-resources program. "We firmly believe that the boards are essential to helping us achieve our goal of getting water to where and when it is most needed for farmers, citizens, fish or other economic and environmental uses."
Ecology has maintained that the legislature intended the conservancy boards to have broad authority to review applications to modify an individual's water right.
Approximately 7,000 water-right applications statewide are awaiting decisions. About one-quarter, or 1,700, of the applications are asking to modify existing water rights. Ecology has approved the formation of boards in Adams, Benton, Chelan, Douglas, Ferry, Franklin, Grant, Klickitat, Lewis, Lincoln, Okanogan, Spokane, Thurston, Walla Walla, Whatcom, Whitman, and Yakima counties.
CONTACT: Mary Getchell, Public Information Manager, 360-407-6157; pager, 360-534-8590Copyright © Washington State Department of Ecology. See http://www.ecy.wa.gov/copyright.html.
